The Framing Effects of Professionalism: Is There a Lawyer Cast of Mind? Lessons from Compliance Programs
Rosen, Robert Eli, Parker, Christine E., Nielsen, Vibeke Lehmann, Fordham Urban Law Journal
Professionals working inside companies may bring with them frames of mind set by their professional experience and socialization. Lawyers, in particular, are said to "think like a lawyer"--to have a lawyer cast of mind. In seeking power within a company and in exercising the power that they obtain, professionals may draw on their professional background to frame, name, diagnose, and prescribe a remedy for the company's problems. In making decisions about their compliance with the law, companies are constrained not only by their environment, but also by their agents' understanding of whose (or what) interests the company should serve. In particular, compliance managers' understandings will frame and influence their companies' calculations of the value, benefits, and costs of compliance activities. The profession of the compliance manager then may influence how the company complies with the law. This Article uses data from a survey of 999 large Australian businesses to examine the professional background of the person in charge of compliance and (1) how they analyze the costs, benefits and risks of non-compliance; and (2) their company's structures and practices of compliance. Contrary to our hypotheses, we find that the professional background of the individual responsible for compliance has little impact on a company's compliance management structures and practices or assessment of stakeholders. The exceptions are that having a lawyer in charge of compliance is associated with the company's perception of heightened legal risk; and where the person in charge of compliance is a lawyer, the company compliance efforts will be marked by manuals and training programs, but not more fulsome compliance structures, which are present when a compliance specialist leads the department. Unfortunately, our data also reveals that these compliance structures are generally merely formal--and likely largely symbolic.
Introduction I. Julius Henry Cohen and the Lawyer Cast of Mind II. Professional Frames' Influence on Business Behaviors III. Our Study A. Outline of Analytic Model/Hypotheses B. Data and Research Strategy 1. Data 2. Research Strategy 3. Measures 4. Testing Hypothesis 1: Compliance Behavior of Respondent's Company 5. Testing Hypothesis 2: Respondent Company's Risk Analyses 6. Main Independent Variable 7. Control Variables a. The Firm's History b. Firm-Level Factors IV. Results A. Hypothesis 1: Direct Effects of Professional Orientation on Compliance Management Behaviors B. Hypothesis 2: Indirect Effect of Profession on Risk Analyses V. Discussion/Conclusion A. Summary of Results B. Limitations of Study C. Firm Identity and the Profession of the Person in Charge of Compliance D. Firm Norms and Professional Behavior E. The Two Faces of Lawyers Conclusion--Back to Julius Henry Cohen
The mind of the lawyer is the essential part of the machinery of justice.... The progress of the law means the progress of the lawyer, not of a few talented men who are on the outposts of legal thought, but the great army of the commonplace.... (1)
An inveterate tradition in thinking about the legal profession is to ascribe to lawyers a "cast of mind." (2) "Thinking like a lawyer" supposedly names a peculiar mode of both analysis and response. (3) The "great army" of lawyers is said to have "[t]he mind of the lawyer." (4)
Experience, socialization, and education in particular, are thought to construct the lawyer cast of mind) By performing law jobs, such as drafting documents or appearing before tribunals, lawyers may develop habits of heart and mind. Some of these are characteristic of all fiduciaries, such as careful work, anticipation of risks, and unselfish devotion. (6) Others are characteristic of the legal profession, such as unquestioning loyalty, partisanship, and the ability to challenge authority with respect. …